Sosa-Valenzuela v. Holder, Jr.
2012 U.S. App. LEXIS 18537
| 10th Cir. | 2012Background
- Sosa-Valenzuela, a Mexican-born entrant, came to the United States in 1981 and became a lawful permanent resident in 1992.
- In 1994, at age 16, he pled to offenses related to attempted murder and firearm possession; after a collateral attack, the state court amended the plea to first-degree assault and a crime of violence with a deadly weapon.
- In 1996, DHS charged deportability; proceedings were delayed as Sosa-Valenzuela completed parole.
- Sosa-Valenzuela conceded deportability and sought a § 212(c) waiver and an adjustment of status; the IJ initially granted both, but the BIA later reversed the waiver denial.
- On remand, the IJ found a final order of deportation in 2004 and granted adjustment based on his marriage; the BIA again denied the waiver under Brieva while the appeal was pending; the court remanded for Judulang-based reconsideration, but affirmed the denial of adjustment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to reverse IJ via motion to reconsider | Sosa-Valenzuela argues the BIA collateral attack invalidates the IJ decision. | DHS/BIA had de novo authority to review via reconsideration and appeal. | BIA had authority to review the IJ's waiver decision on appeal of the motion to reconsider. |
| Brieva/Judulang impact on waiver eligibility | Brieva’s comparable-grounds approach governs eligibility. | Brieva applies; Judulang requires new criteria. | Remand warranted to apply Judulang-based criteria; Brieva’s approach rejected as controlling. |
| Adjustment of status based on marriage discretionary review | BIA misapplied weights of equities in the discretionary analysis. | Adjustment decisions are discretionary and reviewable only for non-discretionary issues; standard applies. | Court lacks jurisdiction to review the discretionary balance; affirmed BIA denial of adjustment. |
Key Cases Cited
- Stone v. INS, 514 U.S. 386 (U.S. 1995) (final agency review deadlines do not toll reconsideration period in internal review)
- Judulang v. Holder, 132 S. Ct. 476 (S. Ct. 2011) (rejects BIA’s Brieva-like comparable-grounds approach; requires new criteria)
- Matter of Brieva, 23 I. & N. Dec. 766 (BIA 2005) (comparable-grounds approach to §212(c) relief for aggravated felony)
- Matter of Cerna, 20 I. & N. Dec. 399 (BIA 1991) (BIA may reconsider or reopen; de facto broad jurisdiction on review)
- Valdiviezo-Galdamez v. Attorney General of United States, 663 F.3d 582 (3d Cir. 2011) (BIA must apply law existing at time of review; new precedent permissible)